Appeal No. 1998-1914
Application No. 08/528,130
The Advisory Action mailed August 29, 1997 (Paper No. 10), referring to
applicants’ response filed “Aug 23, 1997" [sic; August 4, 1997, Paper No. 8] states that
claims 3 and 7-9 would be allowable, and are allowed for purposes of appeal. We
assume that claims 3 and 7-9 have been allowed upon entry of the amendment filed with
appellants’ Paper No. 8.
Claims 2 and 6 have been canceled.
We refer to the Final Rejection (Paper No. 7) and the Examiner's Answer (Paper
No. 13) for a statement of the examiner's position and to the Brief (Paper No. 12) and the
Reply Brief (Paper No. 14) for appellants’ position with respect to the claims which stand
rejected.
OPINION
In the Answer, the examiner refers to the section 102 rejection of claims 1, 4, 5, and
11 over Bailey which appears in the Final Rejection. The Final Rejection (page 4) states
that claims 1, 4, 5, and 11 are rejected under 35 U.S.C. § 102 as being anticipated by
Bailey, but refers to the Office action mailed January 24, 1997 (Paper No. 5) “[a]s to claims
4 and 5.” Paper No. 5, however, states that claims 4 and 5 are rejected under 35 U.S.C.
103(a) as being unpatentable over Bailey.
The Manual of Patent Examining Procedure (MPEP) § 1208 (Seventh Edition, Rev.
1, Feb. 2000) notes the impropriety of referring to more than one prior Office action,
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